ALJDEC decisions subject to certification as final

2017A-3003-CPA-ROC · Registrar of Contractors · 2017-11-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE CIVIL PENALTY CITATION ISSUED TO:

Monsour Adeshino Adams

Respondent

No. 2017A-3003-CPA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 3, 2017

APPEARANCES: Tom Raine, Attorney for the Registrar of Contractors; Monsour Adeshino Adams, Respondent; Dan Rhodes, witness

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony in this matter, the undersigned Administrative Law Judge hereby recommends that Respondent’s appeal be denied.

FINDINGS OF FACT

Respondent is not licensed in the State of Arizona with the Registrar of Contractors.

On September 11, 2017, Dan Rhodes, Senior Unlicensed Investigator for the Registrar of Contractors was patrolling an area in Mesa and saw a van and ladder at 43 N. Matlock, Mesa. He also noted that a panel on the air conditioning unit on the roof was removed and Respondent was on the roof. According to the testimony of Investigator Rhodes, he asked Respondent if he was a licensed contractor and Respondent stated that he was. Respondent then stated that the home was his, but he admitted that he was not a licensed contractor.

Investigator Rhodes testified that Respondent’s truck had printing on it stating that Respondent was licensed, bonded, and insured. It did not have a contractor’s license number on it.

On September 12, 2017, Investigator Rhodes issued Respondent a Cease and Desist Order with a $1000.00 civil penalty. Investigator Rhodes testified that $1000.00 is the Registrar of Contractors policy for civil penalties where the alleged perpetrators has no prior offenses.

Respondent appealed the Cease and Desist Order. He stated at hearing that the house belongs to a relative of his and he was just helping them. He acknowledged that the van was his.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. §§ 32-1165 and 32-1166 state as follows:

32-1165. Advertising; effect of; classification

Except as authorized by section 32-1121, subsection A, paragraph 14, subdivision (c), it is a class 1 misdemeanor for any person to advertise that he is able to perform any service or contract for compensation subject to regulation by the registrar under the terms of this chapter unless a license under the terms of this chapter is first obtained regardless of whether his operations as a contractor are otherwise exempt. [Emphasis added.]

32-1166. Injunctive relief; civil penalty

A. In addition to all other remedies, when it appears to the registrar, either upon complaint or otherwise, that any person, firm, partnership, corporation, association or other organization, or a combination of any of them, has engaged in or is engaging in any act of contracting, practice or transaction which constitutes a violation of this chapter, or any rule or order of the registrar, the registrar may serve upon such person, firm, partnership, corporation, association or other organization not currently licensed under this chapter, by certified mail or by personal service, a cease and desist order requiring the person, firm, partnership, corporation, association or other organization to cease and desist immediately, upon receipt of the notice, from engaging in such act, practice or transaction. In conjunction with the cease and desist order, the registrar may issue a citation for a violation. Each citation shall be in writing and shall clearly describe the violation for which the citation was issued. Each citation shall contain an order to cease and desist and an assessment of a civil penalty in an amount of at least two hundred dollars for each violation but not more than two thousand five hundred dollars for the multiple violations committed on the same day. If after the issuance of a citation by the registrar, the person or organization receiving the citation fails to cease and desist in the violation or violations described in the citation, the registrar may assess an additional civil penalty of up to two thousand five hundred dollars for each day the violation or violations continue. The registrar shall adopt rules covering the assessment of a civil penalty that give due consideration to the gravity of the violation and any history of previous violations. The penalties authorized under this section are separate from, and in addition to, all other remedies either civil or criminal.

B. Each violation of this chapter or a rule or order of the registrar by a person who is required to be licensed by this chapter and who does not possess the required license shall constitute a separate offense, and the registrar may impose a civil penalty of not to exceed two thousand five hundred dollars for each violation except that for multiple violations committed on the same day the civil penalty shall not exceed two thousand five hundred dollars for all such violations. Monies collected from civil penalties shall be deposited in the state general fund.

C. The registrar of contractors may issue citations containing orders to cease and desist and of civil penalties against persons who have never been licensed under this chapter who are acting in the capacity of or engaging in the business of a contractor in this state.

In this case, Respondent admitted to using a truck that advertised that he was a licensed contractor when he did not have a license. While the individual project he was involved in may have been an exception to the rule against contracting without a license, Respondent still admitted to violating the prohibition against advertising that he had a license when he does not.

The imposition of a $1000.00 civil penalty for advertising without a license is reasonable considering the amount of income Respondent could have generated with false advertising.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be denied and that the September 12, 2017 Cease and Desist Order and $1000.00 civil penalty issued by the Registrar of Contractors against Respondent should be sustained.

Done this day, November 17, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors